J-S39010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee 

v.

ANTHONY FELICIANO,

Appellant No. 2725 EDA 2014

Appeal from the PCRA Order August 19, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0002321-2008

BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 07, 2015

Anthony Feliciano appeals from the August 19, 2014 order dismissing 

his PCRA petition as untimely. We vacate the order since the PCRA court did 

not have jurisdiction to entertain the petition due to a pending appeal.

On June 10, 2009, Appellant pled guilty to one count of possession 

with intent to deliver. At the time of the plea, counsel for Appellant and the 

Commonwealth agreed to a minimum sentence not less than the bottom of 

the standard range and to waive the mandatory minimum for the offense. 

On July 15, 2009, Appellant was sentenced to eight to twenty years 

imprisonment. 

Appellant filed a motion for reconsideration of sentence on July 24, 

2009, which was denied. He did not file a direct appeal. On June 25, 2010, 
J-S39010-15

- 2 -

Appellant filed a timely pro se petition for PCRA relief, counsel was 

appointed, and counsel filed an amended petition and second amended 

petition on Appellant’s behalf. In the latter, Appellant alleged that his guilty 

plea was unlawfully induced by the Commonwealth’s representation that it 

would recommend that the sentence run concurrent to any sentence of back 

time he would receive for his state parole violation.

 At a November 19, 2010 evidentiary hearing, Appellant testified that 

he was promised that the two sentences would run concurrently. He 

maintained that he believed the district attorney was going to write a letter 

on his behalf to the parole board recommending that the sentence imposed 

on the possession with intent charge and the back time on the parole 

violation run concurrently, but that he was now aware that the two cannot 

legally run concurrently. He asked the court to modify his sentence in 

accordance with Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976) 

(holding that where a plea bargain has been entered into and is violated by 

the Commonwealth, the defendant is entitled to the benefit of his bargain).

Appellant acknowledged to the PCRA court that at the time of the 

guilty plea, he had sworn under oath that no additional promises were made 

to him other than those presented in open court. He was also confronted 

with the notes of testimony from both the plea hearing and sentencing 

where he was advised by the court and counsel that he would have to serve 

parole violation time in addition to the sentence imposed on the current 
J-S39010-15

- 3 -

offense. Finally, Appellant was shown the sentencing transcript where his 

counsel argued for a mitigated sentence due to the fact that Appellant would 

also have to serve back time on the parole violation and Appellant echoed 

that same argument on his own behalf. Trial counsel testified that there was 

no agreement as to back time and that he so advised Appellant. The PCRA 

court found that the guilty plea in the underlying case was not unlawfully 

induced and denied relief. This Court affirmed the decision of the PCRA 

court on June 29, 2011. Commonwealth v. Feliciano, 31 A.3d 758 

(Pa.Super. 2011). 

On January 13, 2014, Appellant filed a pro se motion for clarification of 

intended sentences in which he reiterated the same claim that the sentences 

were to run concurrently and asked the trial court to clarify that for the 

Board of Corrections. The court denied the motion on January 14, 2014, and 

Appellant appealed to this Court on January 29, 2014.1 

On July 10, 2014, despite the pending appeal, Appellant filed the 

within petition for writ of habeas corpus. The trial court treated the petition 

as a PCRA petition and issued Rule 907 notice of intent to dismiss on July 

22, 2014, due to untimeliness. Appellant filed a response on August 11, 

2014, and by order of August 19, 2014, the court found that Appellant’s 

response merely reiterated that same assertions previously raised and 

____________________________________________

1 That appeal, 359 EDA 2014, is also assigned to this panel.
J-S39010-15

- 4 -

rejected in his first PCRA petition, i.e., that the June 10, 2009 guilty plea 

was illegally induced. Appellant also alleged that Alleyne v. U.S., 133 S.Ct. 

2151 (2013) announced a new constitutional right and that it should be 

retroactively applied.2 The PCRA court denied relief and dismissed the 

petition as untimely on August 19, 2014. Appellant filed a notice of appeal 

to the Supreme Court, but it was transferred to this Court for disposition. 

Appellant raises four issues for our review:

1. Did the Pennsylvania Legislature and-or court of common 

pleas “suspend” the writ of habeas corpus in violation 

Pennsylvania Constitution Article I, § 14 and U.S. Constitution 

Article I, § 9(2)?

2. Did the Pennsylvania Legislature and compliant trial court 

create/follow sentencing statutes/procedures in violation 

separation of powers doctrine of Pennsylvania and U.S. 

Constitution?

3. Did the Pennsylvania Legislature and trial court ignore the 

mandates and supremacy of the U.S. Constitution amendments 

5, 6, 14?

4. Must the illegal sentences imposed in this case be 

corrected?

Appellant’s brief at 5.

Although we agree with the PCRA court’s conclusion that the instant 

habeas petition is an untimely PCRA, we note that Appellant filed the within 

petition in the trial court while this case was already on appeal to this Court. 

____________________________________________

2 Appellant did not explain how Alleyne v. United States, 133 S.Ct. 2151 

(2013) was implicated in a plea agreement. 
J-S39010-15

- 5 -

The appeal of the clarification order operated to divest the trial court of 

jurisdiction to rule on the petition. Pa.R.A.P. 1701(a) (“Except as otherwise 

prescribed by these rules, after an appeal is taken or review of a 

quasijudicial order is sought, the trial court or other government unit may no 

longer proceed further in the matter.”). Absent jurisdiction, the order is a 

legal nullity. 

Order vacated. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2015